HKSAR v. Cheong Un-ieng

HCMA000111/2004

HCMA111/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.111 OF 2004

(ON APPEAL FROM ESCC 2979 OF 2003)

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Coram: Hon Gall J in Court

Dates of Hearing: 1 and 2 April 2004

Date of Judgment: 2 April 2004

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J U D G M E N T

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1.The appellant was convicted on 5 January 2004 of one count of Inflicting Grievous Bodily Harm, contrary to section 19 of the Offences Against the Person Ordinance. She was sentenced to a period of imprisonment for nine months and she now appeals both conviction and sentence.

2.The evidence upon which the prosecution relied was that PW1 was an Indonesian girl aged 19 who arrived in Hong Kong on 18 August 2003 to take up employment with the family of the appellant on 22 August 2003. The events that were the subject of this trial took place on 5 September 2003. It is clear that the employers were not particularly happy with the performance of the Indonesian servant. She had been sent back to the agency which brought her here for re-training and complaints had been made about her standard of work and her cleanliness.

3.The case of the prosecution is that at about 3 p.m. on 5 September 2003 the Indonesian maid was ironing some clothes while the appellant was watching television. The maid testified that she spilt some water on the floor and squatted down to wipe it up using a cloth. As she wiped, she said, the appellant lifted her shirt and placed the hot iron that she had been using on her back. That, she said, gave rise to the wound that was found on her back which comprised a trapezoid brownish-red burn with ruptured blisters measuring about 10 cm by 6 cm and a second burn, being a slender band of brownish-red superficial burn with ruptured blisters about 11.5 cm by 0.5 cm. Two smallish burns were also found on examination upon the front of the right forearm of the young lady.

4.The grounds of appeal are firstly that since direct evidence of the assault came only from PW1 there was a heavy burden upon the magistrate to consider all the contradictions in the evidence and the principal contradiction which the grounds of appeal address are the advance immediately after the witness said that she had been burnt. In her evidence she said that upon feeling pain she stood up, when she turned around she saw the appellant holding an iron and in another part of her evidence she said as soon as she stood up the iron fell down next to her feet. This matter is not specifically dealt with by the magistrate but it is brought to my attention that the appellant was represented in the court below and this was not a matter which counsel representing her saw fit to bring to the attention of the magistrate nor to argue in relation to the credibility of the witness.

5.On examination of the evidence, it appears that the sight of the iron in the hand of the appellant was said by the witness to have been at the time when she was squatting. That is consistent with her having turned at that point then stood up and the iron having been dropped. It may be that there is a discrepancy there, it does not seem to me to be of such a material nature as to either warrant a brief analysis by the magistrate or that it affects the credibility of the witness to a degree where it is significant.

6.The second ground of appeal is that the magistrate accepted too readily the evidence of the pathologist that it would have been very difficult for a person to inflict these injuries herself because of their position. The magistrate directed her mind to whether or not the injury could have been self-inflicted. She said this :

"... It is also clear that a large area of the hot instrument was placed upon PW1's back. I found as a fact that PW1 did not inflict the injuries to herself. I did consider whether they could have been inflicted accidentally. I concluded that they were not as I accepted the evidence of PW1 that she had placed the iron face down on the ironing board, it was in the most stable state, and there was no evidence to suggest that the injury had been caused accidentally..."

The evidence that the wound was not self-inflicted came from a forensic scientist who gave evidence. The magistrate, in commenting on his evidence, said the forensic scientist produced his report as exhibit P5. He confirmed the contents as been true and correct. He stated that the injuries were probably as a result of the iron. He stated that the injuries could possibly have been self-inflicted, but it was unlikely as the injured site was not the easiest place to see and it would be inconvenient to make such a mark.

7.It was therefore a live issue before the magistrate that the injury could have been self-inflicted. There was no evidence upon which the magistrate could have considered that it was inflicted by another person outside the premises, so the only matter for her to consider that it was caused by the appellant or that it was a self-inflicted wound. The magistrate considered all the facts upon which she could have drawn that conclusion or which could have raised a doubt in respect of the case of the prosecution and having considered it, rejected the submission that it could have been self-inflicted. Having considered it fully and properly she could not be said to have accepted it too readily.

8.The third ground of appeal also deals with whether the wound was self-inflicted and, as I have said, notwithstanding the matters raised by Mr Mackay for the respondent concerning the motivation the victim may have had, to keep her job and not to return to Indonesia, the magistrate had fully in mind all those matters and nonetheless made as a determination of fact that the injury was not self-inflicted.

9.The fourth and fifth grounds of appeal relate to the assessment of credibility of the appellant and DW3 who is described, in the grounds of appeal and by the magistrate, as DW2. This is an error which has been perpetuated throughout the documentation of this case.

10.I have considered all the magistrate said in respect of her assessment of the evidence. The appellant was represented and all the matters which went to the credit of the witnesses were placed before the magistrate. It is not incumbent upon the magistrate to give reasons for every detail which she finds proved in the case before her nor every detail which leads her to an assessment of credibility. I am satisfied that the magistrate properly approached this matter and her assessment of the credibility of the witnesses is a proper and valid one.

11.The last matter raised is that the injury to the victim could not be categorized as grievous bodily harm. I am referred by Mr Mackay to HKSAR v. Lo Tak Chi [2000] 1 HKC 385. There the Court of Appeal held that :

"multiple bruise marks and abrasions over head, face, right perriorbital region ... and a small cut wound on the tongue which required suturing and a chipped tooth where there were no fractures did not satisfy the definition of grievous bodily harm."

12.The phrase "grievous harm" is not defined in the Offences Against the Person Ordinance. In HKSAR v. Liu Man Kuen, HCMA604/2000, Lugar-Mawson J said this :

"... In both Hong Kong and England, following a jury direction given by Willes J in R v Ashman [1858] 1 F&F 88, it was formerly interpreted to include '...any harm, which seriously interferes with health or comfort'. But in DPP v Smith [1961] AC 290, the House of Lords said that there was no warrant for giving the words a meaning other than that which they convey in their ordinary and natural meaning. Viscount Kilmuir LC saying at p.334 of the report :

'Bodily harm' needs no explanation, and 'grievous' means no more and no less than 'really serious'."

13.In Liu Man Kuen, the court was considering a case with facts similar to this when a victim was told to place her hands on an ironing board and a hot iron was pressed down the back of both hands resulting in a secondary degree scaled wound of the dorsum of each hand. Lugar-Mawson J held that :

"... It is a question of fact in each case. And whereas common sense tells one that some injuries will always be considered as amounting to grievous bodily harm and some, obviously minor ones, will not, in the vast majority of cases it is left to the tribunal, properly directed, to come to its own conclusion."

He came to the conclusion that the injury in the case before him was one of grievous bodily harm.

14.The magistrate in the instant appeal came to the same conclusion and I am unable to say that was a wrong decision. The appeal against conviction is dismissed.

15.The magistrate in sentencing said this :

"... There were no major medical problems suffered by the Appellant that would prevent a custodial sentence from being imposed. This was a very serious assault and I was satisfied that the Appellant had lifted up PW1's top before placing the iron on PW1's back. In my judgment a sentence of 15 months would have been a proper sentence. I reduced it to 9 months because of the Appellant's age and previously clear record. ..."

16.There is no criticism that could be made of the starting point of 15 months. The matter went to trial, the only mitigation was the age of the appellant and the previous clear record. A deduction of six months from 15 months to reflect that mitigation was very generous. There is nothing in the appeal against sentence and it is dismissed.

Representation:

1 April 2004

Mr P. Cheung, DDPP (Ag) and Ms Vivien Chan, GC of the Department of Justice, for the Respondent

Mr Graeme Mackay, instructed by Messrs David W.T. Chan & Co., for the Appellant

2 April 2004

Ms Vivien Chan, GC of the Department of Justice, for the Respondent

Mr Graeme Mackay, instructed by Messrs David W.T. Chan & Co., for the Appellant